The backdrop against which the Attorney General
and White House memoranda were issued may well be as important
as the policies themselves. The access community has seen efforts
since the beginnings of the Bush administration to curtail disclosure:

Cheney Energy Task Force - In April 2001, Rep. Waxman and
Rep. John Dingell, ranking member of the Energy and Commerce
Committee, began seeking information about the energy task force
headed by Vice President Cheney. The request for information
was prompted by news reports that the task force had met privately
with major campaign contributors to discuss energy policy. The
Bush Administration was unwilling to provide the information,
even to the General Accounting Office (GAO), the investigative
arm of Congress. The White House took the position that GAO's
investigation would unconstitutionally interfere with the functioning
of the Executive Branch. Even when GAO voluntarily scaled back
its request - dropping its request for minutes and notes - the
Vice President's office was intransigent. The Vice President
acknowledged only that GAO was entitled to review the costs
associated with the task force. The dispute led to GAO filing
its first-ever suit against the Executive Branch to obtain access
to information. GAO's effort failed at the trial level. In December,
the district court in the case issued a decision ruling that
GAO has no standing to sue the Executive Branch. GAO then decided
not to appeal the decision.

Presidential Records Act - When, on January 20, 2001, the
Presidential Records Act ("PRA"), 44 U.S.C. §
2201 et seq., 12-year restriction period for records containing
confidential communications among President Ronald Reagan, Vice
President George H.W. Bush, and their advisers expired, the
Bush White House first directed the National Archivist to withhold
the records while it "studied" the matter, and then,
on November 1, 2001, President George W. Bush promulgated Executive
Order No. 13,233 (the "Bush Order"), which purports
to give binding directions to the Archivist about how to administer
presidential and vice presidential records under the PRA. The
Bush Order turned the PRA's public access requirement on its
head by granting former Presidents, Vice Presidents, and their
"representatives" veto power over any release of materials
by the Archivist simply by claiming executive privilege, regardless
of the merits of the claim. Only with the "authorization"
of a former President or Vice President does the Bush Order
permit the Archivist to disclose any presidential or vice presidential
records.

Detainees Names - In the first few days after the September
11 attacks, some 75 individuals were detained on immigration
violations. At the same time as the administration sought
increased authority from the Congress to detain foreign individuals
on the grounds of national security with no judicial oversight,
it picked up hundreds more individuals. The Attorney General
announced that 480 individuals had been detained as of September
28; 10 days later another 135 had been picked up; and in one
single week during October, some 150 individuals were arrested.
As of November 5, the Justice Department announced that 1,147
people had been detained. The Attorney General asserted that
the Justice Department was following the "framework of
the law" and that detainees' rights were being respected.
However, with no information released about the arrests, it
was impossible to independently verify that claim.

Homeland Security FOIA Exemption - On November
22, 2002, Congress passed H.R. 5005, the Homeland Security
Act of 2002 to create a Department of Homeland Security. It
was signed into law (Public Law 107-296) by President Bush
on November 25th. The law includes a provision (Sec. 204)
that will create a broad exemption from the Freedom of Information
Act: "Information provided voluntarily by non-Federal
entities or individuals that relates to infrastructure vulnerabilities
or other vulnerabilities to terrorism and is or has been in
the possession of the Department shall not be subject to section
552 of title 5, United States Code" (the Freedom of Information
Act).

Narrowing FOIA's Central Purpose - The Department of Justice
recently sought a tremendously restrictive construction of the
central purpose of the FOIA when it was pitted against the release
of information from gun trace and sales databases. The DOJ argued
in Department of Treasury, BATF v. City of Chicago that
only the privacy interests in the information should be recognized,
and no broader public interest in law enforcement or gun policy
issues. DOJ's position would narrow the reach of the Freedom
of Information Act in cases implicating privacy concerns by
restricting the FOIA's disclosure requirements only to records
that directly "cast light on the [agency] performance."
Limiting access to such a narrow category of records would overlook
the broad disclosure mandated by the FOIA's legislative history,
which requires disclosure for any public or private purpose.
(http://nsarchive.gwu.edu/news/amicus0203/
).

Fee Category and Fee Waiver Litigation - The Department of
Justice has also uncompromisingly litigated preferred fee categorization
cases where long established rules would counsel in favor of
the FOIA requester. These court cases provide reminders that
case law can have a strong impact on the openness of government,
and that the access community must be on the lookout for even
seemingly innocuous cases in which important access issues are
litigated.

Finally, it is anticipated that a new Executive Order regarding
classification will be issued in April 2003 to replace E.O. 12958
issued by President Clinton ("Clinton
EO"). The Clinton EO had changed the administrative
dynamic of information classification by requiring agencies to
expend resources for any continued classification of a record,
whereas under the old executive order agencies had been required
to take specific actions and commit resources in order to declassify
records which otherwise would retain their classification status
indefinitely. Instead of open-ended classification periods, the
Clinton EO provided for a ten-year classification period for most
records, and automatic declassification after 25 years for most
records that had previously been classified under another executive
order on classification.

The current draft of the Bush Executive Order, obtained and published
by Steven Aftergood of the Federation of American Scientists (http://www.fas.org/sgp),
retains some of the basic reforms of the Clinton EO, particularly
the threat of automatic declassification without review as a means
to force agencies to disgorge their 25-year-old classified files.
Also, the draft order emphasizes training for officials on the
criminal, civil and administrative penalties for leaking classified
information, in lieu of an "official secrets act," described
by Attorney General Ashcroft in September 2002 as unnecessary.
The draft also includes a single provision that breaks with the
status quo, by authorizing emergency disclosure to non-cleared
personnel in the event of an "imminent threat to life or
in defense of the homeland." Otherwise, the order backtracks
on the reforms of the 1990s, by making foreign government information
presumptively classified, by encouraging reclassification even
of 25-year-old documents if the material is reasonably recoverable,
and by giving the CIA a trump card against the decisions of the
Interagency Security Classification Appeals Panel (ISCAP) on records
involving sources and methods of intelligence. One particularly
dramatic cut from the Clinton order removes the two provisions
for "when in doubt," which previously encouraged either
disclosure or downgraded classification if there were doubts or
ambiguities about the necessary level of classification. But doubts
are not allowed in the Bush administration.(1)

The Administration has taken only two significant steps to enhance
access.

Argentina Declassification. - The State Department declassified
more than 4,600 previously secret U.S. documents on human rights
violations under the 1976-83 military dictatorship in Argentina.
Former Secretary of State Madeleine Albright ordered the collection,
review and declassification of U.S. records on Argentina following
an August 16, 2000 meeting in Buenos Aires with leaders of the
Grandmothers and Mothers of Plaza de Mayo, and with the Argentine
human rights organization, the Centro de Estudios Sociales y
Legales (CELS). The special declassification, initiated by the
Clinton Administration was completed by the Bush administration
and yielded hundreds of cables, memoranda of conversations,
reports and notes between the State Department and the U.S.
Embassy in Buenos Aires.

Declassification of Iraq Intelligence - Secretary of State
Colin Powell used electronic intercepts of Iraqi official communications,
current satellite photographs and other intelligence before
the United Nations ("U.N") Security Council to demonstrate
that Iraq is actively working to deceive U.N. weapons inspectors.
In what was viewed as many as an unprecedented display of U.S.
intelligence capabilities, Secretary Powell made public information
that is specifically exempt from disclosure under the FOIA and
prohibited from release by criminal penalties.

Through the Ashcroft Memorandum and the White House Memorandum,
the Administration has taken a strong rhetorical position that
suggests an increase in secrecy through the aggressive use of
FOIA exemptions and classification decisions to prevent the release
of government records. It has specifically required the agencies
to examine their classification programs and ensure they properly
serve the purpose of protecting sensitive information. Yet, Administration
policies have directed only small actual changes in policy or
procedure, such as re-review of records to identify sensitive
or classifiable materials. Instead, guidance has offered suggestions
for ways to maintain secrecy without statutory or regulatory changes.

The practice of implementing small changes all tending towards
secrecy, instead of taking dramatic steps to restrain access,
makes it much harder to evaluate the impact and, indeed, to fight
the changes. It is, undoubtedly, more difficult to garner public
support for opposition to minor changes when more pressing issues,
like an impending war, are competing for public attention. Thus,
it is imperative that the access community, remain vigilant in
its efforts to stem the slow tide of change and identify the real
risks behind incremental policy changes and administrative acceptance
of poor FOIA processing performance. Because the Administration's
approach does not provide an easy target of attack for the access
community, even though there may be a gradual shift over time
towards additional secrecy, the access community must rigorously
examine each change in policy and advocate, through comments,
education and litigation, for these changes to be limited to what
is truly necessary to protect the nation's security and the congressional
intent behind the FOIA.

Note

1. For additional discussion of secrecy initiatives
of the Bush Administration, as well as their impact on the press,
see "Homefront Confidential: How the War on Terrorism Affects
Access to Information and the Public's Right to Know" (The
Reporters Committee for Freedom of the Press, Sept. 2002) (available
at http://www.rcfp.org/homefrontconfidential
).